Citation Nr: 9820811
Decision Date: 07/08/98 Archive Date: 07/15/98
DOCKET NO. 97-28 356 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased evaluation for residuals of
fracture of the right and left mandible, currently evaluated
as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. McGovern, Associate Counsel
INTRODUCTION
The veteran had active service from July 1970 to September
1973.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from the April 1997 rating decision of the
Montgomery, Alabama Department of Veterans Affairs (VA)
Regional Office (RO), which denied an increased rating for
residuals of fracture of the right and left mandible.
By decision dated in December 1997, the hearing officer
increased the evaluation of the veteran’s residuals of
fracture of the right and left mandible from zero to 10
percent, effective from August 1996. The Board notes that
the veteran may still receive an evaluation in excess of 10
percent for his service-connected residuals of fracture of
the right and left mandible. Therefore, the issue of
entitlement to an evaluation in excess of 10 percent for
residuals of fracture of the right and left mandible is now
before the Board. See Holland v. Brown, 9 Vet. App. 324
(1996); AB v. Brown, 6 Vet. App. 35 (1993).
In a May 1997 statement in support of claim, the veteran
asked about the “status of my post stress claim previously
submitted.” The Board notes that it is unclear what the
veteran is referring to in this statement. This matter is
referred to the RO for clarification and appropriate action.
REMAND
The veteran contends that his service-connected residuals of
fracture of the right and left mandible are more disabling
than the current 10 percent evaluation reflects. He asserts
that his jaw symptoms include deformity, pain and aching,
grinding and popping on use, asymmetry, excessive sweating in
the right temporal area during meal time, pressure and
tension in his jaw that requires adjustment, and loss of
motion. He also avers that his service-connected jaw
disorder interferes with his eating and digestion and that he
must eat soft foods. The representative asserts that an
increased evaluation is warranted for limitation of motion of
the mandible with pain on motion and functional loss due to
pain pursuant to DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)
and 38 C.F.R. § 4.150, Diagnostic Code 9905 (1997). The
representative also contends that an increased evaluation is
warranted for severe displacement of the mandible with loss
of masticatory function under 38 C.F.R. § 4.150, Diagnostic
Code 9904 (1997).
The United States Court of Veterans Appeals (Court) has held
that, when a diagnostic code provides for compensation based
solely upon limitation of motion, the provisions of 38 C.F.R.
§§ 4.40 and 4.45 (1997) must also be considered, and that
examinations upon which the rating decisions are based must
adequately portray the extent of functional loss due to pain
"on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App.
202, 206 (1995). The evidence of record shows that the
veteran currently has limitation of motion of his jaw and
that he has complained of pain, aching, and functional
limitation. 38 C.F.R. § 4.150, Diagnostic Code 9905,
evaluates temporomandibular articulation based solely on
limitation of motion and, therefore, DeLuca and 38 C.F.R.
§§ 4.40 and 4.45 must be considered.
At the March 1997 VA examination, the examiner reported that
the veteran opened his mouth 42 millimeters, that he could go
into right lateral movement greater than 12 millimeters, that
he was limited in left lateral excursive movements to less
than 10 millimeters, and that protrusion was less than four
millimeters. The examiner stated that, on opening, the
veteran deviated significantly to the right. The examiner
noted that the effect of the veteran’s residuals of right and
left mandible fracture on everyday activity consisted of
limitations on certain jaw movements and the annoyance of the
excessive sweating during meal time. It was also noted that
the service-connected jaw disorder created somewhat of a
problem in obtaining satisfactory denture function. The
diagnosis was status post bilateral subcondylar fractures,
status post left anterior body fracture, and gustatory
sweating syndrome.
By letter dated in May 1997, Dr. A. Toney stated that he had
treated the veteran on numerous occasions since March 1993
and that the veteran had considerable displacement of his
mandible and major loss of jaw motion.
The March 1997 VA examiner noted that there was significant
deviation to the right on opening of the mouth and Dr. Toney
has reported that the veteran has major loss of jaw motion
and considerable displacement of his mandible. However, the
March 1997 VA examiner did not adequately address pain on
motion or functional loss due to pain. Therefore, the Board
finds that a current comprehensive examination is warranted
to determine the current nature and severity of the veteran’s
service-connected residuals of fracture of the right and left
mandible, to include and any associated functional loss due
to pain or fatigue, weakness, or impaired coordination. See
DeLuca; 38 C.F.R. §§ 4.10, 4.40, 4.45.
In order to ensure that the record is fully developed, this
case is REMANDED to the RO for the following:
1. The RO should contact the veteran and
request that he identify all treatment or
evaluation he has received for his
service-connected fracture of the right
and left mandible since 1996. After
obtaining the appropriate authorization,
the RO should attempt to obtain any
medical records identified that have not
already been acquired. Any records
obtained should be associated with the
claims folder.
2. The veteran should then be afforded a
comprehensive VA examination by an oral
surgeon, to determine the current
manifestations and severity of his
service-connected residuals of fracture
of the right and left mandible. The
veteran’s claims folder and a separate
copy of this remand should be made
available to the examiner, the receipt of
which should be acknowledged in the
examination report. If deemed necessary,
X-rays and any other indicated studies
should be performed. The veteran’s
history, current complaints, and
examination findings must be reported in
detail by the examiner. The examiner
should note whether there is any limited
motion of the temporomandibular
articulation and specifically report the
inter-incisal range and the range of
lateral excursion. The examiner should
also report whether any malunion of the
mandible consists of moderate or severe
displacement with consideration of loss
of motion and relative loss of
masticatory function. The examiner
should state whether there is nonunion of
the mandible and, if so, whether it is
moderate or severe with consideration of
loss of motion and relative loss of
masticatory function. It should also be
noted whether there is loss of the
condyloid process on either side.
The examiner should comment on the
functional limitations, if any, caused by
the residuals of fracture of the right
and left mandible in light of the
provisions of 38 C.F.R. §§ 4.10, 4.40,
and 4.45, noting whether there is
weakened movement, excess fatigability,
or incoordination. Also, if the veteran
is found to have loss of
temporomandibular articulation, the
examiner should specifically report the
degree of any additional range of motion
loss due to any weakened movement, excess
fatigability, incoordination, or pain on
movement, and comment on how and to what
extent these manifestations affect the
veteran. If the severity of these
manifestations cannot be quantified, the
examiner should so indicate. With
respect to the subjective complaints of
pain, the examiner is requested to
specifically comment on whether pain is
visibly manifested on movement of the
jaw. The examiner should provide an
opinion as to whether the veteran’s
subjective complaints are in proportion
to and consistent with the objective
examination findings and any diagnostic
testing.
All findings should be reported in
detail, a complete rationale must be
given for any opinion expressed, and the
foundation for all conclusions should be
clearly set forth. A comprehensive
report, which addresses the
aforementioned, should be provided and
associated with the claims folder.
3. The RO should then review the record.
If the examination report is not
responsive to the Board’s instructions,
it must be returned to the examiner as
inadequate.
4. The claim should then be
readjudicated with consideration of all
pertinent law, regulations, and Court
decisions, to include DeLuca; 38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.150, Diagnostic
Codes 9903, 9904, 9905, and 9908. If the
veteran’s claim remains denied, he and
his representative should be provided
with a supplemental statement of the
case, which includes all pertinent law
and regulations and a full discussion of
action taken on the veteran’s claim,
consistent with the Court’s instructions
in Gilbert v. Derwinski, 1 Vet. App. 49
(1990). The applicable response time
should be allowed.
This case should then be returned to the Board, if in order,
after compliance with the customary appellate procedures. No
action is required of the veteran until he is so informed.
The Board intimates no opinion as to the ultimate decision
warranted in this case, pending completion of the requested
development.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JANE E. SHARP
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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